Clarifying a murky system

Washington Post

Published: July 2, 2014

In the end, Harris v. Quinn did not turn out to pose the deadly menace to U.S. labor that pre-decision hyperbole had warned of. Not a single Supreme Court justice accepted anti-union litigants’ invitation to overturn precedents under which public-sector unions may charge non-members a mandatory fee — a power that prevents “free riders” and helps assure organized labor’s financial viability at a time when private-sector unionism is in decline. As such, the court’s decision was prudent and a victory for stare decisis, the wise principle that the justices leave settled doctrine alone except in extraordinary circumstances. State workers may still organize and bargain collectively and insist on the financial support of members who benefit from that service even if they disagree politically with the union.

What the Supreme Court did do, in a 5 to 4 decision, was curb the ability of unions such as the Service Employees International Union to sign up Medicaid-funded home health-care workers as members, bargain on their behalf with state governments and charge them a mandatory fee — even where the home health care workers aren’t clearly state employees.

That was the situation in Illinois, where, since 2003, SEIU has been the exclusive bargaining representative of some 27,000 caregivers across the state — many of them family members of the aged or disabled, and all of them directly hired by their customers, subject only to very broad state regulation. Because they drew on a state funding source, Medicaid, Illinois law declared them public employees — though only for purposes of labor law, not for less convenient purposes such as legal liability for any personal injuries they might cause.

In striking down Illinois’ system, Justice Samuel A. Alito Jr. wrote for the majority that, given this murky status, “labor peace” and other claimed public benefits of making the caregivers pay union fees were not enough to outweigh their First Amendment right not to fund an organization with which they might disagree. The line separating any union’s political activities from collective bargaining can be blurry when its counterpart is the inherently political state itself. The line may be blurrier still when the union is a highly partisan one such as SEIU, which has been trying, with some success, to boost dues-paying membership, and hence its political war chest, by lobbying for laws in blue states such as Illinois.

Maryland enacted a statute similar to Illinois’ in 2011, though the union in question is not SEIU but the American Federation of State County and Municipal Employees. Under Alito’s ruling, Maryland’s law would appear to be vulnerable to constitutional challenge since it specifically says that it “may not be construed to make independent home care providers employees of the state.”

Perhaps courts should usually assume that states know best about devising collective bargaining rules for their own employees, as Justice Elena Kagan argued in dissent. Whether that deference should extend further, to non-transparent state decisions that define people as employees for selected purposes but not others, is a harder question, which the court in this case plausibly answered in the negative.

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